Abbie Mitchell et al. v. Abbott Terrace Health Center, Inc. (2013)

MEMORANDUM OF DECISION

On September 23, 2013, the court heard oral argument concerning the defendant's motion to dismiss the plaintiffs' complaint (# 101).   The defendant, Abbott Terrace Health Center, Inc., contends that:  (1) the court lacks subject matter jurisdiction since plaintiff Abbie Mitchell lacks the mental capacity to bring an action and since plaintiff Iven Mitchell, who was Abbie Mitchell's attorney-in-fact, was deceased when this action was commenced;  and (2) since the plaintiffs' allegations sound in medical malpractice, this action should be dismissed, due to the plaintiffs' failure to meet the requirements of General Statutes § 52–190a by not filing a certificate of reasonable inquiry and an opinion of a similar health care provider.

After considering the parties' written submissions and oral arguments, the court issues this memorandum of decision.

I

Background

This matter was commenced by service of process on August 14, 2012 (see return service).   In the complaint, the plaintiffs allege that Abbie Mitchell was admitted to the defendant's nursing/rehabilitation facility in April 2008, for medical treatment, rehabilitative care, nursing care, and/or personal care.   See complaint, count one, ¶ 5.   They allege that the defendant was aware that she required assistance for bed and wheelchair transfers, required supervision for ambulation, and had a history of falls.   See complaint, count one, ¶ 6.   In addition, they allege that the defendant was obligated to provide her with such care as was required for her health, safety and well-being, including supervising and assisting her for out of bed transfers.   See complaint, count one, ¶ 13.

They also allege that, during the period October 3, 2010 through November 7, 2010, she suffered five unwitnessed falls, where she was found lying on the floor next to her bed by staff members.   See complaint, count one, ¶ 7.   During the same period, her care plan identified various interventions concerning Abbie Mitchell's falling and her bed.   See complaint, count one, ¶ 8.

The plaintiffs also allege that, on November 20, 2010, at approximately 7:30 a.m., a staff member found her sitting on the edge of her bed, with the bed bolster knocked on the floor.   See complaint, count one, ¶ 9.   At about 7:43 a.m. on the same day, the staff member returned to her room and found her lying on the floor complaining of hip pain.   See complaint, count one, ¶ 11.

In its statement of facts in its memorandum of law (# 102), pages 1–2, the defendant, citing count one, paragraph 14, asserts that the plaintiffs allege that the defendant's negligence claims include that the defendant “failed to adhere to applicable standards of care regarding patients who are at risk for falls ․” This allegation is not set forth in paragraph 14.

The plaintiffs claim that Abbie Mitchell's November 20, 2010 fall and resulting injuries were caused by the defendant's negligence, in various ways, including:  it failed to provide adequate supervision when she was awake and attempting to get out of bed;  it failed to properly assist her while she attempted to get out of bed, even though her care plan required that she have assistance for out of bed transfers;  it frequently left her alone in bed for long periods after she awoke before providing assistance for out of bed transfers, even though the care plan required that she have assistance with out of bed transfers promptly when awake and restless;  it frequently left her in bed alone for long periods of time after she had awoken before providing assistance for out of bed transfers, even though the defendant was aware, or should have been aware, of her several prior unwitnessed falls;  it failed to provide adequate staff for timely and proper assistance for out of bed transfers;  it failed to properly train its staff on how to provide timely and proper assistance for out of bed transfers;  it failed to provide adequate personal care and attention to her for out of bed transfers;  it allowed her to remain in an otherwise unsafe condition by leaving her in bed alone and unsupervised after finding her awake and restless;  contrary to her care plan it allowed her to remain in an otherwise unsafe condition by leaving her in bed alone and unsupervised after finding her awake and restless;  and it failed to properly implement physician's orders.   See complaint, count one, ¶ 14.

In count two, the plaintiffs allege that the defendant's conduct was reckless.   The plaintiffs allege that, among the results of the defendant's negligence and reckless conduct, Abbie Mitchell sustained a hip fracture, was admitted to a hospital for medical treatment, has a permanent disability of her left hip, and has undergone pain and suffering.

By motion to substitute party plaintiff (# 105), the plaintiffs moved to substitute Yolanda Mitchell, conservator for the person and estate of Abbie Mitchell, as party plaintiff in place of Iven Mitchell, attorney-in-fact for Abbie Mitchell, noting that Iven Mitchell passed away on July 4, 2012 and that Yolanda Mitchell had been appointed conservator on or about December 13, 2012.   By order dated January 14, 2013, the court (Sheedy, J.T.R.) granted the motion to substitute.   See # 105.10.

Additional references to the factual background are set forth below.

II

Standard Of Review

“The standard of review for a court's decision on a motion to dismiss is well settled.   A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ․” (Internal quotation marks omitted.)  Gold v. Rowland, 296 Conn. 186, 200, 994 A.2d 106 (2010).

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ․ In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․;  other types of undisputed evidence;  and/or public records of which judicial notice may be taken;  ․ the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ․ Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ․ If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ․ or other evidence, the trial court may dismiss the action without further proceedings ․ If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations ․ or only evidence that fails to call those allegations into question ․;  the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein ․ Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts.”  (Citations omitted;  emphasis in original;  footnote omitted;  internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 651–52, 974 A.2d 669 (2009).

“[A] challenge to the jurisdiction of the court presents a question of law ․” Ryan v. Cerullo, 282 Conn. 109, 118, 918 A.2d 867 (2007).   Here, as to the jurisdictional issues discussed below, the facts are not in dispute.

III

DiscussionASubject Matter Jurisdiction

The defendant argues that the plaintiffs' complaint should be dismissed, based on lack of subject matter jurisdiction, since, due to dementia, Abbie Mitchell lacks the mental capacity to bring an action;  and since Iven Mitchell, Abbie Mitchell's attorney-in-fact, was deceased prior to the commencement of the action.   In response to the court's inquiry at oral argument, counsel confirmed that, at the time this action was commenced, Abbie Mitchell had not been adjudicated an incompetent.

“Subject matter jurisdiction is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong ․ Although it is a critical prerequisite to any court's involvement in a case, we repeatedly have held that, when a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged.”  (Citation omitted;  internal quotation marks omitted.)  In re Judicial Inquiry No.2005–02, 293 Conn. 247, 254, 977 A.2d 166 (2009).   While the defendant argues that, under Connecticut law incompetent parties are not permitted to institute legal proceedings in their own names, it has not cited authority which provides that, under such circumstances, the court lacks subject matter jurisdiction.

“The law does not deprive a person adjudicated incompetent of access to the courts ․ [A]s a general rule, where a person has been adjudged incompetent, and a conservator, guardian, or committee has been appointed for him, he may not institute an action in his own name or by a next friend;  any action on his behalf must be commenced by the conservator, guardian, or committee.”   (Citations omitted;  footnote omitted;  internal quotation marks omitted.)   Cottrell v. Connecticut Bank & Trust Co., 175 Conn. 257, 261–63, 398 A.2d 307 (1978).   Where a conservator and a guardian ad litem have been appointed, “[s]uch appointments indicate a judgment that the plaintiff is incapable of managing her own affairs ․ and of representing her own interests.   Until such determinations are changed, the plaintiff may not bring suit ․ in her own behalf.”  (Citations omitted.)  Id., 261.

As stated above, it is undisputed that, when this action was commenced, Abbie Mitchell was not an adjudicated incompetent.   The defendant also has not presented evidence showing that, when this action was commenced, either a conservator or a guardian ad litem had been appointed for her.¹

In addition to citing Cottrell v. Connecticut Bank & Trust Co., supra, 175 Conn. 261, discussed above, the defendant cites a footnote in Lesnewski v. Redvers, 276 Conn. 526, 542 n.12, 886 A.2d 1207 (2005), overruled, Gross v. Rell, 304 Conn. 234, 270–71, 40 A.3d 240 (2012).   In footnote 12, the court in Lesnewski stated, “The defendant also contends that the right of conserved persons to sue should not be extended to give them the right to sue in all matters because it would undermine public confidence in dealing with conservators.   This argument need not be addressed because it is based on the faulty premise that today's decision gives incapable persons a broad right to bring an action in their own names in all matters.”   This dicta, in a decision later overruled, does not support the defendant's argument that the court lacks subject matter jurisdiction.

The defendant's reliance on Kirwan v. State, 168 Conn. 498, 502–03, 363 A.2d 56 (1975) also is misplaced.   Subject matter jurisdiction was not at issue there;  rather, the court addressed a statute of limitations defense, to which the plaintiff responded by claiming that the limitations period was tolled because of his unsound mind.   See id., 499–500.   Thus, the defendant's citation to the phrase, “should have been adjudicated incompetent,” id., 503, has no bearing on subject matter jurisdiction.

“[I]n no case does the law deprive an insane person or a person under a disability of access to the courts in order to seek redress, but a court may make provision to insure that such person's interests are well represented.”   Kirwan v. State, supra, 168 Conn. 502.  “[E]ven one whose thought processes are impaired to the extent of being insane has a legal capacity to sue or be sued, provided he has not been formally adjudicated an incompetent and placed under the guardianship of another.”  Ridgeway v. Ridgeway, 180 Conn. 533, 539, 429 A.2d 801 (1980).   At the time this action was commenced, Abbie Mitchell had not been adjudicated an incompetent.   In view of this appellate authority, the defendant's request that the court make a finding of that she was incompetent when the action was begun, and its references to medical records concerning Ms. Mitchell's mental status and to allegations in the complaint concerning physical and mental impairment, also are unavailing.

Similarly, the defendant's contention that Abbie Mitchell's provision of a power of attorney to Iven Mitchell makes it evident that she is unable to maintain a suit is unsupported by the decision cited by the defendant in support of this aspect of its argument.   Consolidated Association of the Birches at Foxon v. Gaetano, Superior Court, judicial district of New Haven, Housing Session, Docket No. SPNH 95 0844160 (January 4, 1996, Jones, J.) [16 Conn. L. Rptr. 191], does not provide that, as a general matter, the execution of a power of attorney renders a person unable to maintain an action.

Abbie Mitchell has been a plaintiff in this matter since its inception.   Since, as discussed above, even while mentally impaired she had the capacity to bring suit, the court had subject matter jurisdiction as to her claims when suit was commenced.   Therefore, the court need not consider the defendant's argument that this matter was void ab initio as to Iven Mitchell's claims on her behalf as her attorney-in-fact or the plaintiff's response thereto, that the argument is moot since Yolanda Mitchell, Abbie Mitchell's conservator, has been added as a substituted plaintiff.   Since, after she was appointed, Abbie Mitchell's conservator was added as a plaintiff, the court retains subject matter jurisdiction.

B

Personal Jurisdiction

General Statutes § 52–190a(a) provides, in relevant part:  “No [medical malpractice] action ․ shall be filed ․ unless the ․ party filing the action ․ has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.   The complaint ․ shall contain a certificate of the ․ party filing the action ․ that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant ․ To show the existence of such good faith, the claimant ․ shall obtain a written and signed opinion of a similar health care provider ․ that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion ․”

“[T]he grant[ing] of a motion to dismiss ․ is the proper statutory remedy for deficiencies under § 52–190a.”  (Internal quotation marks omitted.)   Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).   “[T]he failure to provide a written opinion letter ․ constitutes insufficient process, which implicates personal jurisdiction over the defendant.”  (Internal quotation marks omitted.)  Id., 351.   The defendant moved to dismiss within the time afforded under the Practice Book. See Morgan v. Hartford Hospital, 301 Conn. 388, 401–04, 21 A.3d 451 (2011).

A good faith certificate and a written opinion of a similar health care provider are not required in cases against health care providers which sound in ordinary negligence.   See Multari v. Yale New Haven Hospital, 145 Conn.App. 253, 256–57, 259–61 (2013) (since complaint sounded in ordinary negligence as opposed to medical malpractice, plaintiff was not obligated to file a good faith certificate or a written opinion from a similar health care provider pursuant to § 52–190a);  in contrast, see Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 364, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001) (plaintiff's claim against medical professionals with whom she had a medical professional-patient relationship involved negligent act or omission during an activity that was substantially related to her treatment;  as such, certificate of good faith pursuant to § 52–190a was required).

“As [the Supreme Court] explained in Gold v. Greenwich Hospital Assn., 262 Conn. 248, [254–55,] 811 A.2d 1266 (2002), ‘[t]he classification of a negligence claim as either medical malpractice or ordinary negligence requires a court to review closely the circumstances under which the alleged negligence occurred.  [P]rofessional negligence or malpractice ․ [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services ․ Furthermore, malpractice presupposes some improper conduct in the treatment or operative skill [or] ․ the failure to exercise requisite medical skill ․ From those definitions, we conclude that the relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment ․” (Emphasis in original;  internal quotation marks omitted.)  Jarmie v. Troncale, 306 Conn. 578, 587–88, 50 A.3d 802 (2012), citing Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 357–58.

In the present case, the defendant argues that the plaintiffs' allegations invoke the professional care and judgment of the health care providers, including doctors and nurses at the defendant's nursing home facility, in their care and treatment of Abbie Mitchell.   In particular, it asserts that all three of the above requirements are met, in that it is sued in its capacity as a health care provider, that the alleged negligence is substantially related to medical diagnosis or treatment, and involved the exercise of medical judgment.   The plaintiff does not contest that the first factor is met.

As to the second factor, the defendant asserts that the allegations of negligence are of a specialized medical nature, outside the knowledge of a lay person, because they relate to the care and treatment provided to Abbie Mitchell, as they call into question the adequacy of the interventions put into place by the physicians, based on fall risk assessments and decision-making of a specialized medical nature.   Concerning the third factor, the defendant argues that complex medical issues related to how to implement the least restrictive means by which to prevent a patient from falling, while allowing the patient her freedom, relate directly to diagnosis and treatment and require medical judgment.   The defendant also asserts that where the allegedly negligent acts are inextricably tied to the decisions and orders of nurses and doctors, the alleged injuries stemming from those acts are substantially related to the medical care and treatment of Abbie Mitchell.

The defendant contends that expert testimony is necessary to establish the applicable standard of care and to establish how it was violated.  “Medical malpractice claims do not necessarily require expert testimony.   Although a court requires expert testimony to establish the relevant standard of care in most cases;  ․ [s]ome aspects of a medical malpractice action are considered to be within the realm of a jury's knowledge ․ and, thus, do not require expert testimony.   The characterization of a claim as ordinary negligence or medical malpractice, therefore, does not turn on whether expert testimony is required.”  (Citations omitted;  internal quotation marks omitted.)  Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 360.

The court notes, however, that expert testimony as to Mitchell's condition may be helpful to establish allegations of ordinary negligence because such testimony may provide the trier of fact with evidence of her condition relevant to the extent to which she should have been supervised.   See Badrigian v. Elmcrest Psychiatric Institute, 6 Conn.App. 383, 386–87, 505 A.2d 741 (1986).   “[M]edical testimony may be appropriate as to whether the suspected illness or symptomology of [Abbie Mitchell] was such as to produce particular risks ․ Such limited testimony ․ does not, however, convert an ordinary negligence case into a medical malpractice claim.”   Mason v. Rockville General Hospital, Superior Court, judicial district of Tolland at Rockville, Docket No. 98 068416 (January 19, 2000, Sullivan, J.) [26 Conn. L. Rptr. 239].   The likelihood of expert testimony does not necessitate a finding that the plaintiffs' claims sound in medical malpractice.

The circumstances here differ from those in cases cited by the defendant.   For example, Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009), concerned the defendants' care of the plaintiff during her pregnancy and the premature birth of her son, who died fifty-one days later.   The allegations there were materially different from those alleged here.  “Prior to and during the plaintiff's hospitalization, the plaintiff requested that the defendants bring in physicians from Yale–New Haven Hospital's high risk pregnancy group to consult and to take over her treatment.   At some point, the plaintiff, in fact, did consult with the Yale high risk group, ․ resulting in the defendants' reception of a written consultation report advising the defendants in their care of the plaintiff.   The defendants concealed the report from the plaintiff ․ [T]he plaintiff's condition worsened, as the plaintiff at various times developed symptoms of premature labor, fever, infection and back pain.   Despite the presence of these symptoms and the plaintiff's repeated requests, the defendants refused to turn over her care to the Yale high risk group or to treat her in accordance with the group's recommendations.   The defendants at various times represented to the plaintiff that she did not need high risk physicians, that the Yale high risk group would participate in her case and that the defendants would follow the recommendations of the Yale high risk group.”  (Footnote omitted.)  Id., 573.

“Significantly, paragraphs nineteen and twenty of the complaint included factual allegations that implicated deviation from professional medical standards.   Paragraph nineteen of the first count ․ alleged in part that the defendants disregarded ‘the recommendation of [the] high risk physicians during the [p]laintiff's stay at the hospital.’   Paragraph twenty of the first count ․ alleged in part that the defendants disregarded the plaintiff's requests concerning her treatment ‘for no valid medical reasons ․’ “ Id., 574.   The Appellate Court concluded, “[t]he defendants' alleged acts ․ substantially are related to their medical diagnosis and treatment of the plaintiff and involved the exercise of their medical judgment.”  Id., 578.

Here, in contrast, the plaintiffs' claims relate to the defendant's alleged failure to follow routine procedures related to falling.   The alleged negligence is not of a specialized medical nature.   The allegations do not call into question medical diagnosis or treatment, or medical judgment.

The defendant also relies on the March 6, 2012 trial court decision in Multari v. Yale New Haven Hospital [53 Conn. L. Rptr. 610], asserting that, there, the plaintiff's claims sounded in medical negligence because all allegations relating to plaintiff's fall focused on medical treatment.   The trial court was reversed in Multari v. Yale New Haven Hospital, supra, 145 Conn.App. 253 (released on August 27, 2013, prior to oral argument of the instant motion on September 23, 2013).

The allegations in other Superior Court decisions cited by the defendant differ from those at issue here.   In Nichols v. Milford Pediatric Group, Superior Court, Docket No. CV 11 6007365 (December 14, 2011, Hiller, J.) [53 Conn. L. Rptr. 132], affirmed, 141 Conn.App. 707, 64 A.3d 770 (2013), “[t]he plaintiff sought to recover damages from the defendant in connection with injuries he sustained when he fainted while his blood was being collected during a physical examination.   He claimed that his injuries were caused by the defendant's negligence in failing to adequately train and supervise the employee who had collected his blood.”  Id., 707.

In concluding that the action sounded in medical malpractice, the Appellate Court stated, “[t]he negligence alleged by the plaintiff is that the defendant improperly trained and supervised the agent who collected the plaintiff's blood.   As a result of that negligence, the defendant's agent allegedly failed to have the plaintiff lay supine on the examination table during the blood collection procedure and to recognize a ‘syncopic reaction to blood sampling,’ both of which failures allegedly resulted in the plaintiff's falling and injuring himself.   The mere fact that the blood collection technique utilized in the present case may have been routine in nature and may or may not have been performed by a medically trained professional is of no matter to our analysis ․ [T]he blood collection at issue occurred as a part of a physical examination of the plaintiff by the defendant.   A physical examination is related to medical diagnosis and treatment of a patient;  therefore, any alleged negligence in the conducting of such an examination is ‘substantially related’ to medical diagnosis or treatment.   Further, whether the defendant acted unreasonably by allowing a medical assistant to collect blood samples unsupervised and in the manner utilized and whether it sufficiently trained its employee to ensure that any blood collection was completed in a safe manner, including imparting the knowledge necessary to recognize a ‘syncopic reaction to blood sampling,’ clearly involves the exercise of medical knowledge and judgment.”  Id., 715.   Here, at the time of the alleged incident, no physical examination of Abbie Mitchell was being undertaken and no medical knowledge involving recognition of a patient's reaction to a medical procedure is alleged.

This court also agrees with the analysis of the court in Cortes v. Visiting Nurse Assn. of Central Connecticut, Inc., Superior Court, judicial district of New Britain at New Britain, Docket No. CV 10 6006066 (November 10, 2011, Shortall, J.T.R.) (52 Conn. L. Rptr. 874) concerning Skoczylas v. Waterbury Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 99 0152531 (October 8, 1999, Leheny, J.) (25 Conn. L. Rptr. 481), cited by the defendant, a decision which pre-dates Trimel and therefore is not couched in terms of an assessment of the above-cited three requirements,:  “hospital's decision regarding whether to leave unsupervised a patient hospitalized for suicidal tendencies and suffering from a preexisting balance disorder involved the exercise of medical judgment.”  “In cases involving the failure to follow safety procedures in general, courts have found medical malpractice when the alleged negligence occurred in the course of medical treatment and when the allegations questioned a medical judgment that such safety procedures were necessary.”  Cortes v. Visiting Nurse Assn. of Central Connecticut, Inc., supra, Superior Court, Docket No. CV 10 6006066.   Here, the alleged negligence did not occur during medical treatment and the allegations do not question a medical judgment that safety procedures were necessary.

Sullivan v. Manchester Memorial Hospital, Superior Court, judicial district of Hartford at Hartford, Docket No. 00 0598429 (January 8, 2001, Wagner, J.) (28 Conn. L. Rptr. 704), also cited by the defendant, involved the plaintiff's allegations that “at age 87 she was admitted to defendant hospital for observation following complaints of an intermittent confusion, walking difficulty and general weakness and the next morning she was negligently permitted to sit on the edge of her bed, alone, whereupon she fell causing her injuries.”   The court concluded that the allegations of negligence concerning the plaintiff, who was admitted for a CT scan and physical therapy evaluation, required expert testimony on the standard of care and sounded in medical malpractice.   There, the plaintiff was admitted to a hospital for the purpose of medical diagnosis related to confusion, walking difficulty, and weakness.   In contrast, here, when the incident occurred, medical diagnosis and risk assessment had occurred.   A plan of care was in place for Abbie Mitchell.   The allegations concern failure to follow safety procedures, including those mandated by physician's orders and the plan of care.

In Consiglio v. Streeto, Superior Court, judicial district of New Haven, Docket No. CV 06 5001967 (March 24, 2009, Lager, J.) (47 Conn. L. Rptr. 387), the plaintiff was admitted to a hospital for abdominal pain and gastrointestinal bleeding, was noted to be dizzy, and received medications for pain and anxiety.  “The manner in which the hospital treated him for his medical conditions, the way in which his medications were administered and any decisions it made regarding his capacity to ambulate unsupervised within and without the hospital, involved the exercise of medical judgment ․ Moreover, Consiglio was admitted as an inpatient to the hospital for the purposes of treatment and the underlying premise of his claim is that walking around unsupervised was contraindicated due to his diagnosed medical conditions and the treatment that the hospital was administering to him for those conditions.”  (Citations omitted;  footnote omitted;  internal quotation marks omitted.)  Id.

Thus, there, the decision regarding a hospital in-patient's capacity to ambulate involved medical judgment.   In contrast, here, the exercise of medical judgment is not at issue.   The alleged facts in Kelly v. Bridgeport Health Care Center, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 10 6007389 (September 2, 2010, Tobin, J.) (50 Conn. L. Rptr. 582), provide a useful illustration.   There, the plaintiff alleged that “the decedent was confined to a wheelchair and was admitted to Bridgeport Manor suffering from dementia, periods of confusion, memory loss and forgetfulness ․ Over the next year, the decedent repeatedly tried to leave the facility unsupervised, causing Bridgeport Manor to assign staff to monitor the decedent or require staff to be on heightened awareness of his location.   On June 22, 2008, the decedent left the building in his wheelchair, passing both nurses' stations and the reception desk, culminating in his fatal fall from the front steps.   Based on these facts, the plaintiffs allege that the defendant failed to supervise the decedent, failed to stop him from leaving the facility, and failed to stop him from falling over the stairs.”  Id. The court concluded that the allegations “do not challenge any medical judgment as to the need for supervision of the decedent.   The complaint alleges that the decedent attempted to leave the facility on multiple occasions prior to the accident culminating in his death, and based on that history, the defendant either assigned staff or placed staff on heightened awareness, or instituted a policy to prevent the defendant from exiting the facility unsupervised.   Consequently, the complaint does not allege that a different medical judgment should have been made, but merely that the nursing home breached its duty by failing to prevent the decedent from leaving its facility and placing himself in harm's way.”  Id. The court found that the allegations sounded in ordinary negligence since they did “not require any specialized medical knowledge or involve medical judgment.”   The allegations made here are of a similar nature.

As the court in Cortes v. Visiting Nurse Assn. of Central Connecticut, Inc., supra, Superior Court, Docket No. CV 10 6006066, stated, “[c]ourts have held that negligence is not of a ‘specialized medical nature’ where a health care provider neglects to follow or implement an administrative or routine procedure not directly related to a patient's medical care.”  (Emphasis in original;  alleged failure of home health care aide to ensure that bedrail was locked in place.)  “The allegations of the complaint here do not involve the exercise of medical judgment because Ms. Cortes is not questioning the medical decision that her condition required her to be secured in a locked bed, or alleging that a different medical decision regarding her needs should have been made.   Instead, the allegations against Ms. Velez challenge her failure to follow a routine procedure to secure the bed or to seek assistance in securing it, which are tasks ․ that do not require the exercise of medical judgment.”  (Citations omitted.)  Id. Further, as to the third prong of the Gold/Trimel test, “[c]onsistently, courts have held that allegations of negligent supervision [by health care providers] amount to ordinary negligence and not medical malpractice.”  (Internal quotation marks omitted.)  Id.

Here, also, the allegations concern negligent supervision and amount to ordinary negligence and not medical malpractice.²  In the second count, the characterization of the same underlying facts as amounting to recklessness does not change this analysis.

The plaintiffs' claims sound in ordinary negligence.   Compliance with General Statutes § 52–190a was not required.

CONCLUSION

Based on the foregoing reasons, the defendant's motion to dismiss the plaintiffs' complaint is denied.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. As noted above, subsequent to the commencement of the action, Yolanda Mitchell was appointed to be Abbie Mitchell's conservator and the court granted a motion to add her as a substituted plaintiff..  FN1. As noted above, subsequent to the commencement of the action, Yolanda Mitchell was appointed to be Abbie Mitchell's conservator and the court granted a motion to add her as a substituted plaintiff.

FN2. The inclusion of allegations concerning failure to train staff (see complaint, first count, ¶ 14g) may require expert testimony.   As discussed above, that expert testimony is needed does not necessarily convert a claim of ordinary negligence into a medical malpractice claim..  FN2. The inclusion of allegations concerning failure to train staff (see complaint, first count, ¶ 14g) may require expert testimony.   As discussed above, that expert testimony is needed does not necessarily convert a claim of ordinary negligence into a medical malpractice claim.

Shapiro, Robert B., J.